Spotlight for Career Services Professionals, March 17, 2011
Spotlight for Recruiting and Employment Professionals, March 17, 2011
Recently, NACE asked attorney Edward Easterly—who practices employment and labor law at Tallman, Hudders, & Sorrentino in Allentown, Pennsylvania—whether employers should require employees to provide their Facebook/social network passwords. Following is Easterly’s response:
Question: Should an employer require its employees to provide their Facebook/social network passwords?
Answer: The short answer is no! The federal Stored Communications Act (SCA) of 1986 makes it illegal for an employer to intentionally access without authorization a facility that provides electronic communications services. If an employer violates the SCA it can be subject to both civil and criminal penalties.
So what constitutes “authorization?” In the case of Pietrylo v. Hillstone Restaurant Group, a server was fired for statements made on a personal, private MySpace account. The account was created to “talk about all the drama and gossip occurring in our workplace, without having to worry about outside eyes prying in.” Access to the site was by “invitation only” and given to select coworkers. A coworker, however, provided access to senior managers, who went on the site and viewed the content of the server, which led to his termination.
A jury found, and the court affirmed, that even though the managers were provided with the login information, they did not have proper “authorization” to view the site. The decision was predicated on the fact that the employee who provided the login information felt coerced into handing it over to management. As such, management did not actually have “authorization” to view the site.
Accordingly, even if an employee provides the information freely, an employer will have to show that the individual was not coerced into complying with the request for the login or password. If an employer requires all employees to provide such information as a condition of employment, it may be viewed as a violation of the SCA. As such, while there is no specific case law as of now that interprets this issue, it is recommended that employers do not adopt such a policy.